Citation Nr: 1134443
Decision Date: 09/14/11 Archive Date: 09/22/11
DOCKET NO. 09-15 610 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania
THE ISSUE
Entitlement to service connection for a cervical spine disorder.
REPRESENTATION
Appellant represented by: Michael Toomey, Attorney
ATTORNEY FOR THE BOARD
John Francis, Counsel
INTRODUCTION
The Veteran served on active duty from May 1962 to May 1965.
This appeal comes before the Board of Veterans' Appeals (Board) from a June 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).
In a March 2009 substantive appeal, the Veteran requested a hearing before the Board sitting at the RO. In January 2011, the Veteran failed to appear for a scheduled hearing. On review of the claims file, the Board was unable to confirm that the Veteran and his representative were notified of the date, time, and place of the hearing. In June 2011, the Board remanded the appeal to afford the Veteran another opportunity for a hearing. The Veteran and his representative were notified in July 2011 of the date, time, and place of a hearing scheduled greater than 30 days in advance in August 2011. The Veteran did not appear for the hearing with no good cause shown. The request for a hearing is considered withdrawn. 38 C.F.R. § 20.701 (d) (2010).
FINDING OF FACT
The Veteran's cervical spine disorder manifested many years after service; it is not related to any aspect of service or secondary to service-connected lumbar spine disease.
CONCLUSION OF LAW
The criteria for service connection for a cervical spine disorder have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310 (2010).
REASONS AND BASES FOR FINDING AND CONCLUSION
VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010).
Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide and; (3) that the claimant is expected to provide. See 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi,
18 Vet. App. 112 (2004).
Further, VA must review the information and the evidence presented with the claim and provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006)
In correspondence in April 2005, the RO provided notice that met the requirements except that the notice did not provide information on the criteria for assignment of a rating or effective date. After the initial decision on the claim, in August 2009, the RO provided an adequate notice followed by an opportunity to respond and readjudication of the claim in a December 2009 supplemental statement of the case. Therefore, the Board concludes that the Veteran had actual notice of the criteria for substantiating a claim for service connection on a direct and secondary basis and that a rating and effective date would be assigned should service connection be granted. Further, the Board concludes that the timing error was harmless given that service connection is being denied, and hence no rating or effective date will be assigned with respect to the claimed disorder.
In addition, VA has obtained all relevant, identified, and available evidence and has notified the appellant of any evidence that could not be obtained. VA has also obtained records of a disability determination by the Social Security Administration and VA medical examinations. Thus, the Board finds that VA has satisfied both the notice and duty to assist provisions of the law.
The Veteran served as a U.S. Army infantryman with duty in Europe. He contends that his cervical spine disease first manifested in service, is related to a traumatic injury to the neck and spine in service, or is secondary to service-connected lumbar spine disease.
Service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by military service. For the showing of chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, evidence of continuity of symptoms after discharge is required to support the claim. Service connection may also be granted for a disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303.
In order to establish service connection for a claimed disorder, there must be
(1) medical evidence of current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and
(3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Brammer v. Derwinski,
3 Vet. App. 223 (1992).
Some chronic diseases may be presumed to have been incurred in service, although not otherwise established as such, if manifested to a degree of ten percent or more within one year of the date of separation from service. 38 U.S.C.A. § 1112(a)(1); 38 C.F.R. § 3.307(a)(3); see 38 U.S.C.A. § 1101(3) and 38 C.F.R. § 3.309(a) (listing applicable chronic diseases, including arthritis).
Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). When service connection is established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The Board notes that there was an amendment to the provisions of 38 C.F.R. § 3.310 in 2006. See 71 Fed. Reg. 52744-47 (Sept. 7, 2006). The amendment sets a standard by which a claim based on aggravation of a nonservice-connected disability by a service-connected one is rated.
Service treatment records showed that the Veteran sought treatment at a military clinic in December 1962. An examiner noted, "Thinks he was clubbed on the neck. Has stiff (R) SCM." The Board interprets the abbreviations as right scalene muscle or right sternocleidomastoid muscle as these muscles are associated with the neck. The examiner prescribed heat and anti-inflammatory medication. The Veteran did not provide the clinician with further details of the "clubbing" and did not report a period of unconsciousness. The clinician did not order X-rays, and there was no follow up treatment. The Veteran was seen in the clinic in February 1963 with no neck complaints. The Veteran performed the remainder of his two and one-half years of infantry service with no further complaints of neck pain. The remainder of the service treatment records is silent for any trauma to any area of the body. In March 1963, the Veteran was placed on restricted duties because of inflammation of the cartilage of the knees that was not related to a traumatic event. In a March 1965 discharge physical examination, the Veteran denied any history of arthritis or bone, joint or other deformity and did not report any incident of trauma. The military physician noted no complaints or abnormalities of the neck or spine.
The Veteran reported to several clinicians and to the Social Security Administration that he worked in a factory sewing shoes from 1965 to 1980. He submitted his own lay statement and six lay statements from relatives, friends, and coworkers regarding his post-service symptoms. In November 1980, a brother and a friend both noted conversations with the Veteran in which he discussed how his feet, legs, and back hurt after marching, guard duty, or other military activities. They did not mention any trauma to any area including the neck or that any symptoms persisted after service. In March 1984, the Veteran noted that his knee pain started in 1963 but did not report any trauma to the spine or neck. He noted that he currently experienced back problems that precluded any gainful activity. In April 1988, the Veteran's spouse noted that she had received letters from the Veteran while he was in service reporting that he was experiencing knee pain. She reported that the Veteran was currently experiencing back pain. In January 2000, a fellow soldier noted that he observed the Veteran complain of knee pain during a field exercise but did not mention neck pain. In an undated statement, a nurse for a physician who reportedly treated the Veteran from 1965 to 1980 recalled that the Veteran received treatment for back pain. In March 2009, a factory co-worker noted that the Veteran complained of neck and back pain shortly after returning from service and sought treatment shortly thereafter.
The claims file contains no records of medical treatment from 1965 to 1975. In October 1975, a private orthopedic physician noted the Veteran's reports of an episode of back pain starting the previous June. The Veteran described the pain in the low back radiating to the thigh. The Veteran did not mention neck pain and denied any previous traumatic incident or episode of back pain. The physician obtained X-rays of the lower back that showed degenerative disc disease and advised against any manipulation therapy as it was inappropriate for the type of disease. The physician examined the Veteran again in September 1980 with no reports or clinical observations of any neck symptoms.
The Veteran underwent VA examinations in 1980, 1981, and 1982. In November 1980, a physician noted the Veteran's report of injuring his back at work in 1974 and again in 1980 in similar movements while sewing. The Veteran reported that a private physician in 1974 diagnosed degenerative disc disease of the lower spine and that he received chiropractic treatment with some improvement. The Veteran also reported that he experienced occasional pain in the neck. In November 1981, a physician noted the Veteran's report that he first developed low back pain in 1975 because his occupation required him to bend constantly. The Veteran reported that he sustained a back injury at work in August 1980 when he was lifting materials and turning back to his machine. He stopped work after this injury. There were no reports or clinical observations regarding the cervical spine. In October 1982, a physician noted the Veteran's reports of back pain from marching, crawling, and hitting the prone position. The examining physician noted a supple neck with a good range of motion and no specific reports by the Veteran of any neck symptoms. X-rays were obtained only of the thoracolumbar spine that showed degenerative disease and moderate dorsal kyphosis. In May 1983, a VA physician noted the Veteran's report that he first experienced back pain in 1975 which he attributed to his sewing work at the shoe factory and which was diagnosed as degenerative disease. The Veteran reported that he injured his back in 1980 and currently experienced pain that extended to the neck and out to the shoulders. The physician noted an examination of the neck was normal but did not obtain cervical spine X-rays.
The claims file contains medical records associated with the Veteran's claim for Social Security Administration disability benefits from 1980 to 1984. A private physician and a private neurologist noted the same history of low back pain and work related accidents as noted by VA examiners. Regarding the cervical spine, the physicians noted a normal range of motion with no reports by the Veteran or clinical observations of neck symptoms. SSA granted disability benefits for degenerative disc disease of the lumbar spine.
In July 1997, an X-ray of the cervical spine was obtained on orders of a private physician. The imaging study showed disc narrowing at two levels and early indications of degenerative disc disease. Subsequent clinical notes and a lengthy October 2000 letter from the physician are silent for any neck abnormalities. However, VA outpatient records starting in April 2000 show reports from the Veteran of cervical pain but no radiculopathy or neuropathy of the upper extremities and no limitation of motion. An X-ray of the cervical spine obtained in September 2000 showed moderate to severe degenerative disc disease.
A re-examination report obtained by the SSA in 1998 was silent for any symptoms or disorder of the cervical spine.
In August 2003, a private specialist in neurophysiology and pain management obtained a magnetic resonance image of the cervical spine that showed mild central spinal canal stenosis at two levels, foraminal stenosis at multiple levels, and disc protrusion at C4-5. In a concurrent letter, the specialist noted that the Veteran had a history of flat feet and unspecified trauma in service and concluded that most of the spinal problems were related to flat feet and physical activities such as running and jumping in service. The specialist provided no rationale.
In September 2003, a VA physician noted a review of the claims file and the Veteran's report of the onset of low back pain in 1963 after carrying a parachute. The physician did not note any reports of neck trauma in service and did not further address the cervical spine. However, the physician noted that the lumbar spine disease was likely 50 percent related to flat feet and 50 percent related to age and life activities.
In letters in March 2004 and January 2005, the specialist noted that the Veteran sustained spinal trauma in service with no further specificity and no mention of workplace accident in 1980. In letters in May 2005 and April 2006, the specialist again referred to spinal trauma in service but referred only to flat feet and physical activities such as running and jumping. The specialist attributed all spinal symptoms to this activity, commenting that the spine is one unit and that any distinctions between upper back, lower back, and neck are only for lay people. The specialist explained that an injury to the spine in any location can cause symptoms in a part of the spine which had no direct impact. The specialist did not mention workplace injuries.
In May 2005, a VA physician noted a review of the claims file and private medical records presented by the Veteran. The physician noted the treatment encounter in service when the Veteran reported that he had been clubbed in the neck. During the examination, the Veteran reported that he had been drinking and could only remember that he was hit with something on the back of the head and when he awakened he had lost his watch and money. The Veteran reported that he next sought medical care for low back pain in 1968. A chiropractor provided treatment primarily for his lower back but also included treatment for the neck. The Veteran reported that he did not seek further treatment until two or three years ago when the pain was unbearable. The physician noted that after service the Veteran worked as a shoe sewer which required bending and turning of the neck. The Veteran reported currently experiencing severe neck pain radiating to the upper extremities for which he used narcotic medication for pain and received spinal injections. The Veteran did not wear a cervical brace. On examination, the physician noted no tenderness or trigger points with mild tightness of the right trapezius muscle. Range of motion was less than normal with pain near the extreme of the range. The physician referred to the imaging studies of record and diagnosed degenerative disc disease of the cervical spine at multiple levels. The physician concluded that the Veteran's current cervical spine disease was not related to the lumbar spine disease or to the clubbing event in service. The physician explained that the Veteran had no specific neck symptoms in 1968 and that the current symptoms did not manifest until two to three years earlier. The physician concluded that the event in service was a onetime episode without further follow up while in service. The physician did not comment on the impact of the Veteran's occupation or mention the workplace injury in 1980.
In July 2008, another VA physician noted a review of the claims file including the letter opinions of the specialist. The physician noted the Veteran's report of the onset of back pain after carrying a parachute in 1963 but that he did not seek treatment at that time. The physician also noted the occurrence of the clubbing event but that it occurred in 1964 vice 1962 as shown in the service treatment records. The physician also discussed the Veteran's reported chiropractic treatment in 1968, occupation as a shoe sewer until 1980, and the onset of severe neck pain in the early 2000s. The physician concluded that the Veteran's cervical spine disease was not secondary to his lumbar spine disease. The physician explained that the Veteran was treated once for neck stiffness in service with no follow up. He was then treated by a chiropractor in 1968 and not again until two to three years earlier. After service, the Veteran worked for many years in an occupation that required constant neck movement.
In a June 2008 letter, the private specialist confirmed his previous opinions with no substantive changes. However, in an August 2008 letter, the specialist cited the clubbing event for the first time and concluded that it was the originating factor for the cervical disease. The specialist also repeated his previous conclusion that most of the spinal problems were related to running and jumping with flat feet. The specialist concluded that the Veteran's multiple complaints of spinal pain are related to the injury where he sustained the most impact but did not specific what injury caused that impact. The specialist did not address the Veteran's occupation or the 1980 workplace injury which caused the Veteran to cease work.
In November 2008, the Veteran's private primary care physician noted that she provided care to the Veteran for many years and had reviewed his service treatment record file, erroneously noting that he sustained a clubbing injury to the neck and was knocked unconscious in 1964. She noted that there was no follow up because it was not scheduled. She further noted that the Veteran pursued medical treatment for his back and neck soon after discharge. The physician concluded that the cervical spine disease was caused by the injury in service and aggravated by his occupation after service.
In September 2009, a VA physician's assistant (PA) and a physician noted a review of the claims file. The PA cited the service treatment record entry in December 1962 in which the Veteran reported to a military clinician that he "thought" he was clubbed in the head with no mention of a loss of consciousness. The clinician noted only muscle stiffness and prescribed heat and aspirin with no orders for the Veteran to return. The PA noted that the Veteran was seen in the clinic again six to seven weeks later with no neck or head injury symptoms and that none were reported or observed in the 1965 discharge physical examination. The PA noted a review of the private medical opinions and the coworker's statement in March 2009. The PA noted that the private physicians who provided opinions did not consider all the facts in the service treatment records. The PA noted the Veteran's post-service occupation and his report that the workstation was not ergonomically designed. The PA noted the results of a detailed clinical examination which showed limitation of motion with pain and imaging studies that confirmed multilevel, multifactorial degenerative changes of the cervical spine. The PA and the physician concluded that the 1962 injury was acute and resolved with no continuity of symptoms or treatment that would indicate that the current cervical spine disorder was related to any injury or disorder noted in service.
The Board concludes that service connection for a cervical spine disorder is not warranted on either a direct basis or as secondary to a lumbar spine disorder.
Regarding the lay statements provided by the Veteran and his relatives, friends, and co-worker, the Board concludes that the individuals who provided the statement including the Veteran are competent to report their conversations or correspondence with the Veteran on his symptoms at that time. However, all but one statement did not address a neck injury or specific neck pain but rather discussed knee or generalized back pain. The nurse who reported that she remembered her physician employer providing treatment to the Veteran in the mid 1960s noted only that the treatment was for the knees and back. Moreover, the Veteran reported to clinicians that he sought treatment in 1968 from a chiropractor who was not further identified. Therefore, the Board assigns low or no probative weight to this lay evidence because it does not specifically address the neck symptoms or is not consistent with the remainder of the record including the Veteran's history of treatment reported to his clinicians. The Board concludes that the coworker's statement in March 2009 is credible but warrants low probative weight because his report that the Veteran complained of neck pain shortly after returning from service is not consistent with the service treatment records or the Veteran's later statements to clinicians. The Veteran's statements that he experienced neck pain in service and immediately after service are not credible. The Veteran reported that he underwent chiropractic care for the back that included the neck but did not describe his neck symptoms until 1980 after his two workplace accidents and after over 15 years of work sewing shoes at a station not well configured for the work.
The Board places greatest probative weight on the service treatment records because they represent the Veteran's statements and clinical observations of the contended injury and residuals at the time. The Veteran reported at that time only that he thought he had been stricken in the head but did not report a loss of consciousness. The account of awakening to find his watch and money missing was not provided by the Veteran until many decades later. The examiner noted only a stiff neck related to a muscle and prescribed heat and anti-inflammatory medication. The Veteran did not return for further treatment and had no complaints six weeks later. He continued to perform his duties as an infantryman for another two and one-half years and noted no symptoms on his discharge examination. The Board places great probative weight on the opinion of the VA physician in 2005 and on the opinion of the PA and physician in 2009 who accurately noted the details in the service treatment records and concluded that an injury, if any, that occurred in 1962 had resolved. These opinions are most closely consistent with the facts recorded in the service treatment records and consistent with the Veteran's satisfactory service as an infantryman and ability to perform his duties as a shoe sewer for many years thereafter.
The Board also places probative weight on the reports of a private orthopedic physician in 1975 and 1980 who noted his treatment only of the Veteran's low back pain. Even though the Veteran would have had the opportunity to report neck pain, no such symptoms were noted by the physician. Moreover, the Veteran denied any previous traumatic events. The Board places probative weight on the reports of VA examiners in the early 1980s who also noted the Veteran's reports of back and occasional neck pain associated with his occupation and with workplace accidents. On examination, there were no cervical abnormalities. SSA records also were silent for any cervical disabilities and disability compensation was awarded only for the lumbar spine.
The earliest record of any clinically observed cervical abnormalities was in the 1997 X-rays, although the attending physician at the time did not discuss any cervical symptoms in a letter three years later. Starting with VA and private clinicians in 2000, the Veteran's reported symptoms were consistent with the clinical observations and imaging studies that showed cervical degenerative disc disease.
The Board is not bound to accept medical opinions that are based upon an inaccurate factual background. Black v. Brown, 5 Vet. App. 177 (1993); Swann v. Brown, 5 Vet. App. 229 (1993); Reonal v. Brown, 5 Vet. App. 458 (1993).
The Board places very low probative weight on the multiple opinions provided by the private specialist because they are based on an inaccurate account of events in service and fail to address many other factors in the Veteran's history. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (recognizing that the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"). In four letters, the specialist attributed the cervical spine disease to trauma from repeated running and jumping with flat feet. The specialist also contended that any injury to any part of the spine could cause symptoms at a location distant from the impact. The specialist is competent to provide the opinion, and the Board may not make medical determinations. However, the specialist did not mention the clubbing event until his fifth letter. Although the specialist contended that he reviewed the service records, he indicated that the event occurred in 1964 vice 1962 and made no comments regarding the military examiner's observations and course of treatment after the event or the results of the discharge examination. He did not discuss the Veteran's ability to continue infantry and factory work for many years without symptoms of a severity necessitating treatment. He did not discuss the impact of the two workplace injuries in 1974 and 1980, the latter so severe as to preclude any further employment. Notwithstanding the proposed theory that trauma to any area of the spine can cause symptoms in any spinal location and that any separation of the spinal areas is only for lay people, the Board notes that VA rating criteria provide for separate imaging, measurements, and compensation to multiple areas of the spine. No other medical opinion of record in this case offered that proposition.
The Board also places very low probative weight on the 2008 opinion of the primary care physician because it is inconsistent with the facts in the service treatment records that the physician claimed to have reviewed. The clubbing event occurred at the beginning of the Veteran's service in 1962 and not near the end in 1964. The Veteran did not report unconsciousness at the time which might have warranted additional investigation. The lack of follow up was not a matter of scheduling because the Veteran was seen six weeks later at his initiative and without any report of continuing neck pain. As with the specialist, the physician made no mention of the decades of post-service work and two workplace accidents, suggesting only that the work and injuries were aggravations of an original spinal injury in service without considering the severity of the workplace injuries that caused the Veteran to cease work.
Regarding the contention that the cervical spine disorder is secondary to the lumbar spine disorder, the Board places greater probative weight on the opinion of the VA physician in 2008 who reviewed the claims file and the specialist's opinion, noting several inaccuracies in the opinion and the lack of consideration of the years of satisfactory work without cervical symptoms. Although the absence of treatment does not necessarily prove an absence of symptoms, this physician considered the many opportunities that the Veteran had prior to 1997 to report his cervical symptoms to a clinician examining his lower back and did not do so. The Board concludes from this physician and the opinion of the VA physician in 2003 that the lumbar spine disease arose many years earlier than the cervical spine disease with origins in part from flat feet and in part from age and activities. There is no credible medical evidence that the lumbar spine disease spread to the cervical area or itself caused trauma or misalignment of the upper spine. Therefore, secondary service connection is not warranted.
The weight of the credible and probative evidence demonstrates that the Veteran's current cervical degenerative disc disease first manifested many years after service and is not related to any aspect of his active service. As the preponderance of the evidence is against this claim, the "benefit of the doubt" rule is not for application, and the Board must deny the claim. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
ORDER
Service connection for a cervical spine disorder is denied.
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DENNIS F. CHIAPPETTA
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs